Opinion
Docket No. 63462.
Decided February 24, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Jack J. Kraizman, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and R.B. BURNS and CYNAR, JJ.
Defendant was charged with robbery unarmed, MCL 750.530; 28.798. The alleged offense occurred November 23, 1975. He pled guilty to attempted robbery unarmed, MCL 750.92; MSA 28.287, on December 8, 1975. The court set January 5, 1976, for sentencing.
Since December 8, 1975, the defendant has been incarcerated on other charges, and he was not sentenced on this conviction until January 11, 1982. At the time of sentencing the trial judge stated:
"You pled guilty to attempt robbery not armed. That carries a maximum of five, as you know. We had an updated pre-sentence report that initially had been prepared in April, '79, or April — yes, initially back in '76. Then up-dated in '79 when I believe it was Macomb County sentenced you, but they didn't — they failed to notify us of your presence or we could have done the whole thing then.
"Then you have escape status on your hands. I don't know that they'll do with you on that. You kind of walked away from a halfway house."
The judge sentenced defendant to a term of two to five years in prison and gave him credit for 28 days spent in the county jail.
On appeal, defendant claims that he is entitled to credit for time served since April 18, 1979, when he was sentenced by the Macomb County Circuit Court.
We agree with the defendant that he should have credit in this case for time served under the Macomb County sentence. MCL 769.11b; MSA 28.1083(2); People v Parisi, 46 Mich. App. 322; 208 N.W.2d 70 (1973), rev'd on other grounds 393 Mich. 31; 222 N.W.2d 757 (1974).
Defendant is to receive credit in this case back to April 18, 1979.
Reversed.
M.F. CAVANAGH, P.J., concurred.
Defendant committed a second offense, the Macomb County offense, while the Detroit case was still pending, i.e., before sentencing. See MCL 768.7b; MSA 28.1030(2); People v Mayes, 78 Mich. App. 618, 620-622; 261 N.W.2d 22 (1977). See, also, People v Jeffrey Thompson, 117 Mich. App. 210, 213-215; 323 N.W.2d 656 (1982). I would affirm because to credit here is to give defendant a free crime.